Kaniela Ing is chairman of the State of Hawaii Legislature’s House Committee on Ocean, Marine Resources, and Hawaiian Affairs during the regular session of 2017. His committee held hearings on many bills.

On Friday February 10 a notice was published that a hearing would be held on Tuesday February 14 on several bills. Kenneth R. Conklin, Ph.D., submitted written testimony on Friday regarding two of those bills, long before the deadline for submitting testimony 24 hours before a hearing. On Tuesday afternoon the public files of submitted testimony on those two bills were made available on the Legislature’s website. Dr. Conklin noticed that his testimony was missing from the files of testimony for both bills. Perhaps on rare occasions a clerk might make a mistake and inadvertently forget to include someone’s testimony. But what are the odds that two such mistakes might be made, on the same day, for two different bills, and in both cases the testimony was submitted by the same author!

Chairman Kaniela Ing’s motives are abundantly clear for disappearing Conklin’s written testimonies, because both of them were in strong opposition to Ing’s views.

One of those bills, whose sole introducer was Kaniela Ing, would enact into law a racial restriction on candidacy for election to a state government office. In year 2000 the U.S. Supreme Court ruled (Rice v. Cayetano) that it is unconstitutional to have a racial restriction on who can VOTE for OHA trustees. Later in year 2000 there was a followup lawsuit (Arakaki v. State of Hawaii) regarding the racial restriction on who can RUN as a candidate for OHA trustee. The U.S. District Court in Honolulu ruled that racial restrictions on candidacy are also unconstitutional; and that ruling was later upheld by the U.S. 9th Circuit Court of Appeals. Conklin’s testimony in opposition to this bill pointed out that chairman Ing is too young to remember the court decisions from 2000, but that’s no excuse for a committee chairman who should have access to legal advice before introducing a truly stupid bill.

On Tuesday night, after seeing that his testimony had been disappeared from the files on both bills, Dr. Conklin sent an email to Speaker of the House Joe Souki and all the other members of the House. The email provided attachments of each of the two disappeared testimonies so that House members could read them; complained about the censorship and requested that the testimonies be placed into the published files where they should have been all along; and asked for the perpetrator to be reprimanded. On Wednesday the testimony files for both bills had been updated with Conklin’s testimonies included.

Full text of Conklin’s email to Speaker Souki and the other 51 Representatives is copied below.

But even though the testimony files were corrected on Wednesday, major damage was already done by the suppression of the testimony from Friday through Tuesday. That’s because on Tuesday the committee made its decisions on the bills in the absence of the missing testimonies. The committee voted unanimously to pass the bill with the unconstitutional racial restriction still in it; and Conklin’s disappeared testimony was the only one warning about its unconstitutionality.

So there are two different ways to deal with committee chairman Kaniela Ing and with the members of his committee, depending on how responsibility is apportioned:

(A) If committee chairman Kaniela Ing had in fact prevented committee members from seeing Conklin’s testimony and if the members were unaware of the bill’s unconstitutionality, then Ing’s deception is responsible for committee members violating their oath to support and defend the constitution of the United States. In this case the committee has an obligation to (1) pass a motion of no-confidence in chairman Ing for deliberately misleading (i.e., lying to) them; and (2) ask the entire House to pass a resolution of censure against Ing for suppressing public testimony; and (3) to rescind the committee report and the referral advancing the bill to the next committee.

OR

(B) If the committee actually did have access to Conklin’s testimony before passing the amended version of the bill, or if any committee members were aware of the unconstitutionality even without reading Conklin’s testimony, then the committee members are just as guilty as Kaniela Ing for knowingly and intentionally passing an unconstitutional bill, in violation of their oath of office.

Three items follow: Conklin’s email to Speaker Souki and all representatives in the House; a blog posting that provides full text of the unconstitutional bill and full text of Conklin’s disappeared testimony on it; a blog posting that provides full text of the other bill on which Conklin’s testimony was disappeared.

———–

Email sent to Speaker Souki and all members of the State of Hawaii House of Representatives on Tuesday night, February 14, 2017:

Aloha Hawaii members of the House of Representatives,

Written testimony that I submitted on two different controversial bills has been suppressed. My testimony has been left out of the public files, probably because the committee chairman doesn’t like it. I don’t know whether the committee members were denied the chance to read my testimony, but for sure the public has not had a chance to see it. One of the bills actually contains a change to state law which would impose a racial restriction on candidacy in an election — a racial restriction which two federal courts previously ruled unconstitutional.

I have attached both testimonies to this email to be sure you can read them.

In both cases I submitted the testimony on Friday February 10, through the Legislature’s website, for a hearing to be held on Tuesday February 14. In both cases I immediately received the automated email confirmation that the testimony had been received. But on Tuesday February 14, when the files of testimony were posted on the bills’ status webpages, my testimonies were not included.

Censoring the record of public testimony should be regarded as a serious ethical offense, and should bring a reprimand to the person responsible for the censorship. The public files of testimony, for both bills, should be edited by inserting the disappeared testimony in the same place where it should have been originally published.

Perhaps a mistake or accident could account for one incident of disappeared testimony; but when there are two such disappeared testimonies, both by the same author and on the same day, it is clearly a matter of intentional censorship. If one of the testimonies might be suppressed because it could be regarded as disrespectful, there is no such excuse in relation to the other one.

The committee is the House Committee on Ocean, Marine Resources, and Hawaiian Affairs.

The bills are:

HB1297 RELATING TO HAWAIIAN SOVEREIGNTY. Provides that the State shall support a model of sovereignty and self-governance chosen by the Hawaiian people that complies with federal and state law.

and

HB118, HD1 RELATING TO HAWAIIAN AFFAIRS. Amends the qualifications for election or appointment as an OHA Trustee to include that a person is not registered as a lobbyist within one year of filing nomination papers.

My two testimonies are attached to this email.

Thank you for reading the testimonies and for demanding that they be included in the public files of testimony for the two bills.

Blog containing full text of the bill HR118 that would enact a fully litigated unconstitutional racial restriction on who can run as a candidate for state government office, and full text of Conklin’s disappeared testimony

Blog containing full text of the bill HB1297 which provides that the State shall support a model of sovereignty and self-governance chosen by the Hawaiian people that complies with federal and state law, and full text of Conklin’s disappeared testimony

On Friday February 10, 2017 a notice was published by the legislature of the State of Hawaii announcing that a hearing would be held on Tuesday February 14 on the bill HB1297. Text of the bill is copied below. On that same Friday February 10 Ken Conklin submitted testimony through the Legislature’s website, long ahead of the requirement that testimony must be submitted at least 24 hours before a hearing; and Conklin immediately received the robot-generated confirmation that the testimony had been received. Conklin’s testimony is copied below.

However, after the hearing was held and the public file of written testimony was posted on the Legislature’s “status” webpage for this bill, Conklin’s testimony was not included. Might the omission have been an accident? No! It was clearly not an accident, because exactly the same thing happened with Conklin’s testimony on a different bill, HB118-HD1, whose hearing was announced and held on the same dates, and in the same committee.

The committee is the House Committee on Ocean, Marine Resources, and Hawaiian Affairs. The chairman of the committee is Kaniela Ing, a youthful far-left Hawaiian sovereignty activist whose views might be described as supporting racial entitlement programs at taxpayer expense and race-based political sovereignty. Ing despises Conklin’s views, and the feeling is mutual. Conklin’s testimony was by far the strongest submitted, so it’s no surprise that Ing censored it. The vast majority of testimony was in opposition to the bill, but for reasons Mr. Ing would approve of — based on the assertion that Hawaii is not legitimately part of the United States.

Upon seeing that his testimony had been disappeared from the public files on two bills before the same committee, Conklin sent an email on Tuesday evening to Speaker of the House Joe Souki, and to all House members, providing copies of both of the disappeared testimonies; asking that they be inserted in the public files where they should have been all along; and asking that whoever was responsible for their censoring should be reprimanded. By Wednesday afternoon the public files of testimonies had been updated for both of the bills to include Conklin’s testimony, near the top, in the rightful place where it probably belonged in the order of when the testimonies were submitted.

HB1297 RELATING TO HAWAIIAN SOVEREIGNTY.
Provides that the State shall support a model of sovereignty and self-governance chosen by the Hawaiian people that complies with federal and state law.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 27, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
“PART . HAWAIIAN SOVEREIGNTY §27- Hawaiians; sovereignty; self-governance; state support. The State shall support a model of sovereignty and self-governance chosen by the Hawaiian people in a manner that comports with administrative rules and procedures established by the United States Department of the Interior and that complies with federal and state law.” SECTION 2. This Act shall take effect upon its approval.

Here is full text of Ken Conklin’s TESTIMONY IN OPPOSITION

There is no historical, legal, or moral justification for race-based political sovereignty for ethnic Hawaiians.

Proposals to “reorganize” a Native Hawaiian governing entity are absurd, because there has never been such an entity in the history of Hawaii and therefore there is nothing to be reorganized. After a thousand years, the first time all the Hawaiian islands were organized under a single governing entity was in 1810 when Kamehameha The Great finally intimidated Kaua’i’s King Kaumuali’i to surrender without a fight, and merged his domain with all the rest of the islands which Kamehameha had conquered by force of arms. But the high chiefs in Kamehameha’s ruling government included the British Caucasian John Young as Governor of Kamehameha’s own home Hawaii Island — Young’s tomb is in Mauna Ala, the Royal Mausoleum, guarded with a pair of pulo’ulo’u (sacred taboo sticks), and is the only tomb there which is built in the shape of a miniature heiau; his bones are the oldest in Mauna Ala. British Caucasian Isaac Davis was Governor of O’ahu.

Here are four persuasive reasons why this bill should be defeated.

1. The bill pledges the State government to support whatever model of sovereignty is chosen by a racial group comprising 20% of Hawaii’s people, regardless whether the other 80% oppose it. That’s clearly not pono. A proposal to create an apartheid regime by dividing the lands and people of Hawaii along racial lines should not be endorsed by the legislature unless it is placed on the ballot in a general election under the same rules for approval as used for a state Constitutional amendment. But even in the unlikely event that such a proposal gets ratified by the people, it is clearly contrary to the U.S. Constitution and would likely be overruled by the courts.

2. Numerous scientific surveys show that a majority of Hawaii’s people — including probably a majority of “Native Hawaiians” — oppose this idea. The most reliable and credible surveys were done by nationally esteemed professional public opinion survey companies, including Zogby, headquartered outside Hawaii and thus insulated from propaganda generated by OHA and not beholden to OHA or Kamehameha Schools for lucrative contracts. Even when polls were done by local newspapers or by OHA, over a period of years, the results consistently show that “Native Hawaiians” have the same ranking of priorities as the general population — top priorities are education, healthcare, housing, the environment, and traffic. The lowest priorities are Native Hawaiian rights, race-based handouts — and, lowest of all — ethnic Hawaiian “nationhood” (i.e., the Akaka bill or administrative rule-making to create a Hawaiian tribe). For a compilation of information and links to survey results, see pages 29-34 in Ken Conklin’s “Testimony regarding RIN 1090–AB05” athttp://big09.angelfire.com/ ConklinTestmnyDOI081514RulesChangeHawnTribe.pdf

3. There have been perhaps a thousand news reports and commentaries over the years from 2000 through 2014 opposing the Akaka bill and, more recently, opposing the Department of Interior regulation for creating a Hawaiian tribe. The U.S. Commission on Civil Rights spoke loud and clear against the Akaka bill in 2006 and 2009; and in September 2013 four Commissioners sent a letter to President Obama warning that it would be unconstitutional to use administrative rulemaking or executive order to create a Hawaiian tribe and give it federal recognition. In 2001 and 2005 the House Committee on Judiciary, and its subcommittee on the Constitution, took the unusual step of publicly opposing the Akaka bill even though a different committee had jurisdiction over “Indian” legislation. Constitutional law expert Bruce Fein published several articles opposing the Akaka bill, some of which were republished in the Congressional Record at the request of Senator Jon Kyl. Mr. Fein also wrote a monograph “Hawaii Divided Against Itself Cannot Stand.” Mr. Fein’s essay is of special interest to scholars because of his analysis of the apology resolution of 1993 as well as the provisions of the Akaka bill. Full text of these items has been compiled over the years, including U.S. Commission on Civil Rights letters on official letterhead. A master index provides lists and links for specific time periods. Seehttp://www.angelfire.com/hi2/hawaiiansovereignty/ AkakaPublishedOpposition.html

4. During February 2016 a monthlong meeting was held on O’ahu in which unelected “Native Hawaiians” who had been candidates in an attempted election run by a group called Na’i Aupuni wrote a proposed constitution for a “Native Hawaiian” nation. They wrote it with the specific intention that it would meet the requirements of the Department of Interior “final rule” for creating a Hawaiian tribe.

Right up front in your face, the preamble says “we join together to affirm a government of, by, and for Native Hawaiian people” [i.e., of the race, by the race, and for the race], and “affirm our ancestral [i.e., race-based] rights and Kuleana to all lands, waters, and resources of our islands and surrounding seas.” [i.e., we’re gonna take over the whole place, just like Kamehameha did, who was known as “Ka Na’i Aupuni” — the conqueror.] “We reaffirm the National Sovereignty of the Nation. We reserve all rights to Sovereignty and Self-determination, including the pursuit of independence. Our highest aspirations are set upon the promise of our unity and this Constitution.”

The plain language in the preamble is the declaration of a race-war from a gathering blatantly labeled “Na’i Aupuni” which means “Conquest.”

In case there’s any doubt about fascist racial exclusivity, Article 2 — Citizenship — says “A citizen of the Native Hawaiian Nation is any descendant of the aboriginal and indigenous people who, prior to 1778, occupied and exercised sovereignty in the Hawaiian Islands and is enrolled in the nation.” Article 7, Section 4 reaffirms the religious belief that ethnic Hawaiians have a genealogical relationship with the islands, saying “The Nation has a right, duty, and kuleana, both individually and collectively, to sustain the ‘Aina (land, kai, wai, air) as an ancestor, source of mana, and source of life and well-being for present and future generations. And Article 8 says “The Government shall not … Make any law with intent to suppress traditional Native Hawaiian religion or beliefs.”

What will happen to the 80% of Hawaii’s current population who do not have any Hawaiian native blood? Perhaps the same thing that happened to the vast majority of the indigenous Africans when small minorities of Caucasians took over the governments of Rhodesia (Zimbabwe) and South Africa.

On Friday February 10, 2017 a notice was published by the legislature of the State of Hawaii announcing that a hearing would be held on Tuesday February 14 on the bill HB118-HD1. Text of the bill is copied below. On that same Friday February 10 Ken Conklin submitted testimony through the Legislature’s website, long ahead of the requirement that testimony must be submitted at least 24 hours before a hearing; and Conklin immediately received the robot-generated confirmation that the testimony had been received. Conklin’s testimony is copied below.

However, after the hearing was held and the public file of written testimony was posted on the Legislature’s “status” webpage for this bill, Conklin’s testimony was not included. Might the omission have been an accident? No! It was clearly not an accident, because exactly the same thing happened with Conklin’s testimony on a different bill, HB1297, whose hearing was announced and held on the same dates, and in the same committee.

The committee is the House Committee on Ocean, Marine Resources, and Hawaiian Affairs. The chairman of the committee is Kaniela Ing, a youthful far-left Hawaiian sovereignty activist whose views might be described as supporting race-based political sovereignty and racial entitlement programs at taxpayer expense. Ing despises Conklin’s views, and the feeling is mutual. Conklin’s testimony was by far the strongest submitted, so it’s no surprise that Ing censored it.

The bill HB118-HD1 has two main purposes corresponding to the committee chairman’s personal vendetta against an honorable man and the chairman’s racialist viewpoint. (1) The primary purpose is to single out a newly elected board member of the State of Hawaii Office of Hawaiian Affairs and make it illegal for him to serve on or be a candidate for the board. The bill has the appearance of being a good-government bill intended to prohibit the election of anyone who is a registered lobbyist. But in fact there is only one person now serving on the OHA board or who was recently a candidate for the board who is a registered lobbyist. He just happens to be the head of the Grassroot Institute of Hawaii, a genuine good-government think tank; and in that capacity he occasionally lobbies the legislature seeking government transparency and accountability, offering libertarian analysis of economic issues, etc. He is an opponent of race-based political sovereignty for ethnic Hawaiians — a policy which OHA has spent tens of millions of dollars and seventeen years supporting — a policy which the chairman of the legislature’s committee on Hawaiian Affairs also supports. The committee chairman, in cahoots with a group of Hawaiian racialist institutions, therefore launched a vendetta to oust the newly elected OHA board member, and is using the issue of being a “lobbyist” as a way to pursue their vendetta. (2) The committee chairman also inserted into the bill another provision, in line with his racialist views, which would impose a racial requirement that candidates for election or appointment to the board must be racially Hawaiian. But that requirement, which was formerly a part of the Hawaii state Constitution, was ruled unconstitutional by two federal courts in year 2000. Either the committee chairman is too young to know the history of that event and has no advisor to tell him about it; or else he does know the racial restriction on candidacy is unconstitutional but nevertheless he recklessly wants to enact it.

Nearly all the testimony was in support of the bill. Conklin’s was the ONLY testimony that made any mention of the unconstitutionality of the bill’s racial restriction on candidacy for the OHA board; so by disappearing Conklin’s testimony the chairman and the entire committee could safely claim to be unaware of it. Nearly all the testimonies were very brief and merely supported the fake purpose of getting rid of lobbyists as though that was the real purpose of the bill; but the two testimonies placed all the way at the bottom of a very long file of testimonies make it clear that the bill’s primary purpose is a vendetta against the newly elected OHA board member who opposes racialism and seeks an audit of the board’s corrupt contracting and expenditures.

Upon seeing that his testimony had been disappeared from the public files on two bills before the same committee, Conklin sent an email on Tuesday evening to Speaker of the House Joe Souki, and to all House members, providing copies of both of the disappeared testimonies; asking that they be inserted in the public files where they should have been all along; and asking that whoever was responsible for their censoring should be reprimanded. By Wednesday afternoon the public files of testimonies had been updated for both of the bills to include Conklin’s testimony, near the top, in the rightful place where it probably belonged in the order of when the testimonies were submitted.

The “status file” for this bill, posted on the Legislature’s website, shows that on Tuesday February 14, with Conklin’s testimony still missing from the public file and perhaps therefore also not being seen by the committee members, the committee “recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 7 Ayes: Representative(s) Ing, Gates, Creagan, DeCoite, LoPresti, Takayama, Thielen; Ayes with reservations: none; Noes: none; and Excused: none.”

Then on Friday February 17 the status file says “Reported from OMH (Stand. Com. Rep. No. 510) as amended in HD 2, recommending passage on Second Reading and referral to JUD.”

Putting together the status reports for Tuesday February 14 and Friday February 17, it’s clear that the bill was amended and the amended bill HD2 was approved by the committee on Tuesday. At that time Conklin’s testimony was not included in the public file and probably had not been made available to the members of the committee because the chairman had disappeared it. But Conklin’s was the only testimony pointing out that the racial restriction on OHA candidacy had been ruled unconstitutional by two federal courts in year 2000. So there are two possibilities:

(A) If committee chairman Kaniela Ing had in fact prevented committee members from seeing Conklin’s testimony and if the members were unaware of the bill’s unconstitutionality, then Ing’s deception is responsible for committee members violating their oath to support and defend the constitution of the United States. In this case the committee has an obligation to (1) pass a motion of no-confidence in chairman Ing for deliberately misleading (i.e., lying to) them; and (2) ask the entire House to pass a resolution of censure against Ing for suppressing public testimony; and (3) to rescind the committee report and the referral advancing the bill to the next committee.

OR

(B) If the committee actually did have access to Conklin’s testimony before passing the amended version of the bill, or if any committee members were aware of the unconstitutionality even without reading Conklin’s testimony, then the committee members are just as guilty as Kaniela Ing for knowingly and intentionally passing an unconstitutional bill, in violation of their oath of office.

Here is full text of the first version of the bill HB118-HD1 (first version other than the short-form content-free placeholder bill which this version HD1 filled with content) on which testimony was submitted:

“§13D-2 Qualifications of board members. No person shall be eligible for election or appointment to the board unless the person is Hawaiian and is:
(1) [qualified] Qualified and registered to vote under the provisions of section 13D-3[, and];
(2) [where residency on a particular island is a requirement, a] A resident on the island for which seat the person is seeking election or appointment[.], if residency on a particular island is a requirement; and
(3) Not registered as a lobbyist within one year of filing nomination papers.
No member of the board shall hold or be a candidate for any other public office under the state or county governments in accordance with Article II, section 7 of the Constitution of the State; nor shall a person be eligible for election or appointment to the board if that person is also a candidate for any other public office under the state or county governments. The term “public office”, for purposes of this section, shall not include notaries public, reserve police officers, or officers of emergency organizations for civilian defense or disaster, or disaster relief.”

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 3. This Act shall take effect upon its approval.

————–

Here is full text of the amended version HB118-HD2 approved by the committee on Tuesday February 14, 2017 — very tiny changes not affecting either the personal vendetta or the unconstitutional racial restriction on candidacy.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 13D-2, Hawaii Revised Statutes, is amended to read as follows:
“§13D-2 Qualifications of board members. No person shall be eligible for election or appointment to the board unless the person is Hawaiian and is:
(1) [qualified] Qualified and registered to vote under the provisions of section 13D-3[, and];
(2) [where residency on a particular island is a requirement, a] A resident on the island for which seat the person is seeking election or appointment[.], if residency on a particular island is a requirement; and
(3) Not currently registered as a lobbyist with the state ethics commission.
No member of the board shall hold or be a candidate for any other public office under the state or county governments in accordance with Article II, section 7 of the Constitution of the State; nor shall a person be eligible for election or appointment to the board if that person is also a candidate for any other public office under the state or county governments. The term “public office”, for purposes of this section, shall not include notaries public, reserve police officers, or officers of emergency organizations for civilian defense or disaster, or disaster relief.”

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 3. This Act shall take effect upon its approval.

————–

Here is full text of Ken Conklin’s testimony on the first version of the bill, HB118-HD1. This testimony was either hidden from committee members by chairman Kaniela Ing, or else committee members had access to it and chose to ignore it when they approved a bill whose racial restriction on candidacy was ruled unconstitutional by two federal courts in year 2000:

TESTIMONY IN OPPOSITION

I’ll begin my testimony to a committee on Hawaiian affairs with a sentence in Hawaiian language.

Although this hearing is set for Valentines Day, I have no love for this bill nor for its sponsor. Who is to blame for this bad bill?

The chairman of this committee is, shall we say, badly misguided for introducing this bill, whose contents display an astounding level of ignorance about the history of litigation regarding candidacy for OHA trustees.

One of the major provisions in this bill is flat-out unconstitutional — a fact litigated and ruled by two federal courts. The other major provision might also be unconstitutional, although it has not yet been litigated; but it is certainly immoral if not illegal.

The following members of this committee also deserve blame for rubber-stamping this bill when they voted on February 3 and February 7 to pass this bill as amended: Ing, Gates, Creagan, DeCoite, LoPresti, Takayama, Thielen; no Noes and no reservations. You committee members really must exercise greater vigilance in monitoring the work of your very youthful and reckless chairman. He might be excused because the massively publicized litigation on this issue happened when he was a mere prepubescent boy; but if he’s going to be a committee chairman then he should compensate by having a knowledgeable advisor. Most committee members have no such excuse — if you’re older than 40 and have lived in Hawaii for at least 18 years then you will surely remember the tumultuous events of year 2000.

What’s one major bad thing about this bill?

Lines 3,4,5 on page 1 say “No person shall be eligible for election or appointment to the board unless the person is Hawaiian and …”

That racial restriction on candidacy has been ruled unconstitutional by the U.S. District Court in Honolulu and by the 9th Circuit Court of Appeals.

Of course this committee could rescue that provision by redefining the word “Hawaiian” to mean “citizen of Hawaii” rather than the racially exclusionary meaning requiring at least one drop of Hawaiian native blood.

I would welcome such a redefinition. Please do it! But of course you won’t; so let me continue. Here’s the story.

In year 2000 the U.S. Supreme Court by vote of 7-2 ruled in Rice v. Cayetano that there can be no racial restriction on who can vote in the election for OHA trustees.
Later in year 2000 the U.S. District Court in Honolulu, Judge Helen Gillmor presiding, ruled that there can be no racial restriction on who can run as a candidate for OHA trustee. The case was CV 00-00514 HG-BMK Arakaki et. al. vs. State of Hawaii et. al, and OHA as intervenor. I was honored to be among the multiracial group of 13 plaintiffs including 3 Native Hawaiians. We won.

Governor Cayetano ousted all nine OHA trustees on grounds they had been illegally elected. In the election of November 2000 I ran as a candidate for OHA trustee, along with 95 other candidates for the 9 seats. There were at least a dozen so-called “non-Hawaiians” [Hawaii citizens with no native blood] among the 96 candidates; and one of them, Charles Ota, won the Maui seat.

Judge Gillmor’s civil rights racial desegregation decision was appealed to the 9th Circuit Court of Appeals, and was upheld by the three-judge panel, with the final judgment filed on July 1, 2003 by Honolulu clerk Walter Chinn.

The judgment concludes: “… The State is ordered to permit otherwise qualified non-Hawaiians to run for office and to serve, if elected, as trustees of the Office of Hawaiian Affairs. Section 5 of Article XII of the State Constitution and HRS § 13D-2 violate the Fifteenth Amendment and the Voting Rights Act, to the extent that they require persons running for OHA trustee positions and serving, if elected, to be Hawaiian.”
What’s the other thing wrong with this bill?

The other major new provision of this bill might very well also be unconstitutional. It says “No person shall be eligible for election or appointment to the [OHA] board unless the person is … Not registered as a lobbyist within one year of filing nomination papers.”
To the best of my knowledge there is only one person serving as an OHA trustee or who was recently a candidate for OHA trustee who would be no longer eligible to be OHA trustee under provisions of this bill. I guess your committee chairman has a vendetta against him, and is (ab)using his power as a committee chairman to pursue that vendetta.

Article I, Section 9, Clause 3 of the U.S. Constitution says “No Bill of Attainder or ex post facto Law shall be passed.”

The Heritage Foundation’s Guide to the Constitution says “The Constitution prohibits both the federal government (in this clause) and the states (in Article I, Section 10, Clause 1) from passing either bills of attainder or ex post facto laws. The Framers considered freedom from bills of attainder and ex post facto laws so important that these are the only two individual liberties that the original Constitution protects from both federal and state intrusion. As James Madison said in The Federalist No. 44, “Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.”

So even if this bill might somehow escape being ruled unconstitutional as a bill of attainder, it would clearly not be able to oust the victim of your chairman’s vendetta from his OHA trustee position where he will serve for nearly four more years; because passing this bill after the victim has already been elected and is serving would be an “ex-post- facto” law.

My dear committee members: Does this testimony seem disrespectful? Then consider where the disrespect originated. Introducing this bill, with a major provision already ruled unconstitutional, is disrespectful to the judiciary. Advancing this bill is disrespectful to the oath all legislators take to support and defend the Constitution of the United States. Using the power of a legislature’s committee chairman or member to press a vendetta attempting to oust an elected official without impeachment and trial on charges of misbehavior, or denying voters the right to decide whether a candidate should be elected despite what some might regard as flaws, is disrespectful to the will of the public who elected him and disrespectful to the whole concept of democracy and due process.

Trash this bill. It has already tarnished your reputations, but you can mitigate the damage.

The Native Hawaiians Study Commission was created by the Congress of the United States on December 22, 1980 (Title III of Public Law 96-565). The purpose of the Commission was to “conduct a study of the culture, needs and concerns of the Native Hawaiians.” The Commission released to the public a Draft Report of Findings on September 23, 1982. Following a 120-day period of public comment, a final report was written and submitted on June 23, 1983 to the U.S. Senate Committee on Energy and Natural Resources and to the U.S. House of Representatives Committee on Interior and Insular Affairs.

The 747-page majority report of the NHSC begins with an executive summary and list of conclusions and recommendations, followed by 14 major chapters written by experts, focused on Hawaii’s ancient and modern history, demographics, culture, religion, and reports about responses to the unique needs of Native Hawaiians by federal and state governments, and private institutions. At the end are glossaries explaining Hawaiian-language words, a list of references, and an appendix. For each of the 747 pages of the majority report a photo of the page (click to magnify for easy readability) is next to a simple text version of its contents that is digitized and searchable. See the entire 747-page report, beautifully formatted, athttp://grihwiki.kenconklin.org/mediawiki/index.php?title=Native_Hawaiians_Study_Commission_Report

Ken Conklin’s webpage about the report describes how it was created, how political differences resulted in majority report vs. minority report, and how the majority report found a home on the internet. The webpage also summarizes the conclusions reached by the Commission, and explains the importance of the NHSC report in current controversies regarding Hawaiian sovereignty and racial entitlement programs. Conklin’s webpage about the report is athttp://www.angelfire.com/big11a/NHSC.html

A valuable webpage providing information about 856 government funded racial entitlement programs for the exclusive benefit of “Native Hawaiians” was disrupted but has now been partially restored. Several other webpages on the same topic are also available.

All these programs, valued into the Billions of dollars, are paid for by tax dollars from the governments of the United States and the State of Hawaii. It is likely that these programs are unconstitutional. Some have been challenged in state and federal courts. Thus far the lawsuits to dismantle them have been dismissed on technical procedural issues including “standing” and the “political question” doctrine. However, those dismissals never reached the merits of these cases. Thus all these programs remain available as targets for future civil rights lawsuits based on the 14th Amendment equal protection clause and other arguments.

Keep in mind that this compilation pertains only to government programs funded by taxpayers, and does not include enormous privately funded programs such as Kamehameha Schools (Bishop Estate) which alone is worth $10-15 Billion, Lili’uokalani Childrens Trust, and many others.

2. Why quorum in NPRM for credible participation in election and ratification is too low

3. Don’t abandon question 8 from ANPRM “What should constitute adequate evidence or verification that a person has a significant cultural, social, or civic connection to the Native Hawaiian community?”

4. A unique rule for recognizing a Hawaiian tribe should acknowledge the uniquely high percentage of Native Hawaiians as 22% of the total population of Hawaii, making it uniquely traumatic to partition the State along racial lines. Therefore, a unique Hawaiian rule should require a vote by all Hawaii’s people to approve federal recognition.

5. Promises or predictions made in the NPRM that the rights of people will be protected cannot be delivered. Whatever requirements the DOI imposes upon a tribe’s initial governing document in order to grant recognition can later be changed by the tribe unilaterally — according to a Final Rule in Federal Register October 19. Any tribe can amend its governing document without DOI approval.

Because of #5:

6. There is no protection for special rights of HHCA-eligible native Hawaiians (50% blood quantum);
7. Hawaiian tribe can ignore DOI prohibition on gambling casinos in Hawaii or mainland;
8. Hawaiian tribe cannot be prohibited from participating automatically in all the benefit programs intended for the mainland tribes;
9. Hawaiian tribe would threaten sovereign immunity of federal and State lands, and also threaten private land titles, due to Indian Non-Intercourse Act;
10. Hawaiian tribe has jurisdiction over citizens with no native blood, and also over ethnic Hawaiians who choose not to join the tribe — Indian Child Welfare Act; Violence Against Women Act.

11. Remove the terms “reestablishing a government-to-government relationship with the Native Hawaiian community” or “reorganizing a Native Hawaiian government” because there was never a Native Hawaiian government. All governments of a unified Hawaii had massive Caucasian participation in executive, legislative, and judicial branches.

12. The “special political and trust relationship” that Congress has allegedly established with Native Hawaiians does not exist — asserting it has been a political football punted between Republicans and Democrats.

13. Authoritative sources since 2001 warn that creating a race-based government for ethnic Hawaiians would be both unconstitutional and bad public policy: U.S. House Judiciary subcommittee on the Constitution; U.S. Commission on Civil Rights; and others.

14. Authoritative sources confirm the Hawaiian revolution of 1893 was legitimate and the U.S. owes nothing to ethnic Hawaiians beyond what is owed to all the citizens of the United States: 808-page report of the U.S. Senate Committee on Foreign Affairs (1894); Native Hawaiians Study Commission report (jointly authorized by Senate and House, 1983); more

15. Evidence that “Native Hawaiians” and also the general citizenry of Hawaii do not want federal recognition of a Hawaiian tribe. Zogby survey; two Grassroot Institute surveys; newspaper and OHA scientific surveys show ethnic Hawaiians and the general population place “nationbuilding” at bottom of priorities; more.

16. People of all races jointly own Hawaii as full partners. President Obama himself opposes tribalism and erecting walls between natives and immigrants. History of Black civil rights movement is instructive — Martin Luther King’s model of full integration won the hearts and minds of African Americans and of all Americans, defeating the racial separatism of the “Nation of Islam.”

17. Administrative rule-making should not be used to enact legislation explicitly rejected by Congress during 13 years when megabucks were spent pushing it. The executive branch can only implement laws Congress passed, not create laws Congress rejected. Two federal courts have now overruled Obama’s rule-making that tried to enact immigration laws rejected by Congress.

18. Federal recognition for a Hawaiian tribe would herd into demographic and geographic racial ghettos people and lands that have long been fully assimilated, widely scattered, and governed by a multiracial society. Map shows public lands likely to be demanded by a Hawaiian tribe; Census 2010 table shows number of Native Hawaiians in every state; Census 2010 table showing number of Native Hawaiians in every census tract in Hawaii.

19. Six cartoons by Daryl Cagle illustrating the social divisiveness of racial entitlement programs, as seen in Midweek newspaper, Honolulu, probably late 1990s to mid 2000s.

August 19, 2014 was the final day to submit testimony regarding the Department of Interior Advance Notice of Proposed Rule-Making to create a Hawaiian tribe and give it federal recognition by an administrative procedure or executive order without Congressional action.http://www.gpo.gov/fdsys/pkg/FR-2014-06-20/pdf/2014-14430.pdf

At least 2069 written comments were submitted during the 60 day comment period. A large majority were opposed to the Department of Interior proposal. The following seven testimonies are especially valuable in opposition because they explicitly rely upon the fundamental principles of racial equality and the unity of all Hawaii’s people under the undivided sovereignty of the State of Hawaii:

Conventional wisdom says that (despite the boasts of our newest Governor) with the new Republican Congress in place, the Akaka Bill is effectively dead for the time being. The theory is that the Bill never had much support among Republicans in Congress, and no Democrats will be willing to expend large amounts of political capital in order to push for it. How true this is remains to be seen, but there are some groups in Hawaii who have way too much invested in the Akaka Bill to let a mere detail like political deep-freeze derail their efforts to promote it.

Like (brace yourselves for the surprise) OHA.

In a rather irregular move, OHA Trustee Haunani Apoliona called for OHA to continue its efforts to enroll Native Hawaiians for a possible Native Hawaiian government as called for by the now-defunct Akaka Bill. The reasons given by Apoliona and OHA CEO Clyde Namuo are fairly predictable–and they take care to note that they are looking to enroll Hawaiians living outside of Hawaii. The reason for this effort is fairly obvious–OHA clearly believes that it will be easier to pass the Bill in the future if there is an established roll of “qualified” Native Hawaiians to be recognized by such a bill. So a future version of the Akaka Bill will simply be able to reference the OHA-headed group as the Native Hawaiian government without the accompanying concerns about who should be included and how registration should proceed. In addition, OHA clearly has a lot invested in being the preeminent Native Hawaiian organization in any Native Hawaiian government. Sovereignty groups and other Native Hawaiian organizations that question OHA’s actions and motives can be absorbed and disarmed by OHA preemptive organization, thereby shutting down or minimizing any Native Hawaiian opposition to a future Akaka Bill.

There is, after all, a great deal of money and political power at stake. It would be asking too much to think that OHA could just let that go.

I don’t know why we should be surprised that Senator Inouye is so accomplished at adding pork to the federal budget. After all, if there’s one thing we love out here, it’s a luau. But even the most liberal spender might blanch at the provision that Inouye just attempted to slip into the notorious Omnibus Spending Bill:

NATIVE HAWAIIAN RECOGNITION STUDY AUTHORIZATION
SEC. 125. The Secretary of the Interior shall, with funds appropriated for fiscal year 2011, and in coordination with the State of Hawaii and those offices designated under the Hawaii State Constitution as representative of the Native Hawaiian community, including the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands, and the Attorney General of the United States, examine and make recommendations to Congress no later than September 30, 2011, on developing a mechanism for the reorganization of a Native Hawaiian governing entity and recognition by the United States of the Native Hawaiian governing entity as an Indian tribe within the meaning of Articles I and II of the Constitution.

Allow me to cut through the legislation-ese: This provision grants an unspecified amount of money for a study (made in cooperation with OHA and the Department of Hawaiian Home Lands) on implementing the Akaka Bill constitutionally. If it weren’t for the fact that it’s a blatant pork project, one would be tempted to say something like, “Hey, since you’ve been pushing for this for years, don’t you think it would have been good to address this earlier?” However, given the nature of politics and the truer meaning of this project, perhaps the best response would be, “Hey, you sure have a lot of nerve funneling money to the two biggest supporters of this legislation to produce a ‘study’ that will support it.”

So, what ever happened to the much-ballyhooed OHA petition to force money out of the Hawaii legislature? I remember when they filed it with the Hawaii Supreme Court. How could I forget? I got two separate press releases, a print newsletter article, an e-newsletter brief, and multiple links to the story as picked up (and especially endorsed) by other media outlets. No one would let me forget it. As I recall, the spin went something like this: the Hawaii legislature was resistant to approving the payout plan for a $200 million settlement between OHA and the Lingle Administration related to ceded land revenues, so OHA petitioned the Hawaii Supreme Court to force the legislature to pass a law regarding this pay-out In the OHA version of the story, the reason for the Legislature’s foot-dragging is unexplained, though one is free to conclude that the Legislature is just full of culturally-insensitive money-grubbing politicians. (Not that this is necessarily totally inaccurate, but fairness compels me to point out that our current economic and budget woes make this a bad time for the legislature to try to carve out another $200 million for OHA.)

Anyway, it turns out that the State Supreme Court has ruled on OHA’s petition for a Writ of Mandamus, though in order to learn what happened, I had to read a small column in the lower right corner of page 7 of OHA’s monthly newspaper. No email blasts for this one, I guess. As you may have surmised, the OHA petition was denied based on (in the article’s somewhat mendacious words) the court’s, “understanding of the technical requirements for a mandamus action.” Allow me to translate this into plain language: The court said no, based on the fact that the OHA petition was a bit of public grandstanding with no legal merit.

As I said in my earlier entry on this issue, to me, the big problem is not whether the state owes OHA the money or how they should pay. I just continue to be amazed at the insensitivity of the powers-that-be at OHA. After such a difficult economic year, these kinds of stunts don’t do much to bolster the agency’s image. And trying to obscure the evidence of their miscalculation doesn’t help much either.